Front Page Titles (by Subject) CHAPTER IV.: FELONY. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
Return to Title Page for The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
The Online Library of Liberty
A project of Liberty Fund, Inc.
CHAPTER IV.: FELONY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Felony is a word of which the signification seems to have undergone various revolutions. It seems at first to have been vaguely applied to a very extensive mode of delinquency, or rather for delinquency in general, at a time when the laws scarce knew of any other species of delinquency cognizable by fixed rules, than the breach of a political engagement, and when all political engagements were comprised in one, that of feudal obligation. Upon feudal principles, everything that was possessed by a subject, and was considered as a permanent source of property and power, was considered as a gift, by the acceptance of which the acquirer contracted a loose and indefinite kind of engagement, the nature of which was never accurately explained, but was understood to be to this effect: that the acceptor should render certain stipulated services to the donor, and should, in general, refrain from everything that was prejudicial to his interests. It was this principle of subjection, in its nature rather moral than political, which at the first partition of conquered countries, bound the different ranks of men, by whatever names distinguished, to each other—as the barons to the prince, the knights to the barons, and the peasants to the knights. If, then, the acceptor failed in any of these points—if in any one of his steps he fell from the line which had been traced for him, and which at that time was the only line of duty, he was not such a man as his benefactor took him for; the motive for the benefaction ceased. He lost his fief, the only source of his political importance, and with it all that was worth living for. He was thrust down among the ignoble and defenceless crowd of needy retainers, whose persons and precarious properties were subject to the arbitrary disposal of the hand that fed them. So striking and impressive a figure did such a catastrophe make in the imaginations of men, that the punishment of death, when, in course of time, it came in various instances to be superadded to the other, showed itself only in the light of an appendage.* It came in by custom, rather than by any regular and positive institution: it seemed to follow rather as a natural effect of the impotence to which the inferior was reduced, than in consequence of any regular exertion of the public will of the community.
This seems to have been the aspect of the times at the first dawnings of the feudal polity; but it was impossible things should long remain in so unsettled a state. It is in such times, however, that we are to look for the origin of a word which, sometimes as the name of a crime, sometimes as a punishment, is to be met with in the earliest memorials that are extant of the feudal law.
Some etymologists, to show they understood Greek, have derived it from the Greek: if they had happened to have understood Arabic, they would have derived it from the Arabic. Sir Edward Coke, knowing nothing of Greek, but having a little stock of Latin learning, which he loses no opportunity of displaying, derives it from fel, gall. Spelman, who has the good sense to perceive that the origin of an old northern word is to be looked for in an old northern language, rejecting the Greek, and saying nothing of the Latin, proposes various etymologies. According to one of them, it is derived from two words—fee, which in ancient Anglo-Saxon had, and in modern English has, a meaning which approaches to that of property or money; and lon, which in modern German, he says, means price: fee lon is therefore pretium feudi. This etymology, the author of the Commentaries adopts, and justifies by observing, that it is a common phrase to say, such an act is as much as your life or estate is worth. But felony, in mixed Latin felonia, is a word that imports action. I should therefore rather be inclined to derive it from some verb, than from two substantives, which, when put together, and declined in the most convenient manner, import not any such meaning.
The verb to fall, as well as to fail, which probably was in its origin the same as the other, by an obvious enough metaphysical extension, is well known to have acquired the signification of to offend; the same figure is adopted in the French, and probably in every other language.†
In Anglo-Saxon there is such a word as fellan,‡ the evident root of the English word now in use. In German, there is such a word as faellen, which has the same signification. This derivation, therefore, which is one of Spelman’s, is what seems to be the most natural. So much for the origin of the word: not that it is of any consequence whence it came, so it were but gone.
As the rigours of the feudal polity were relaxed, and fiefs became permanent and descendible, the resumption of the fief upon every instance of trivial delinquency became less and less of course. A feudatory might commit an offence that was not a felony. On the other hand, it was found, too, that for many offences the mere resumption of the feud was not by any means a sufficient punishment; for a man might hold different feuds of as many different persons. The Sovereign, too, interposed his claim on behalf of himself and the whole community, and exacted punishments for offences which, to the immediate lord of the feudatory, might happen not to be obnoxious. In this way, for various offences, pecuniary and corporal punishments in various degree, and even death itself, came in some instances to be substituted—in others, to be superadded, by positive laws to that original indiscriminating punishment, which used at first to follow from almost every offence. That punishment remained still inseparably annexed to all those offences which were marked by the highest degree of corporal punishment, the punishment of death; partly with a view of giving the lord an opportunity of ridding himself of a race of vassals tainted by an hereditary stain; partly in order to complete the destruction of the delinquent’s political as well as natural existence. The punishment of forfeiture, being the original punishment, still continued to give denomination to the complex mass of punishment of which it now constituted but a part. The word felony now came to signify a punishment, viz. the complex mode of punishment, of which that simple mode of punishment, which anciently stood annexed to every delinquency a feudatory could incur, was a main ingredient.
At this period of its history, when the above was its signification, the word felony was, as a part of the Norman jurisprudence, imported into this country by the Norman conquerors; for among the Saxons there are no traces of its having been in use. At this period, it stood annexed only to a few crimes of the grossest nature—of a nature the fittest to strike the imagination of rude and unreflecting minds, and these not very heterogeneous. Theft, robbery, devastation when committed by the ruinous instrument of fire, or upon the whole face of a country with an armed force; these, and homicide, the natural consequences of such enterprises, or of the spirit of hostility which dictated them, were included by it. At this time, the import of the word felony was not, either as the name of a punishment or as the name of an offence, as yet immeasurably extensive. But lawyers, by various subtleties, went on adding to the mass of punishment, still keeping to the same name. At the same time, legislators, compelled by various exigencies, went on adding to the list of offences punishable by the punishment of that name; till at length it became the name not of one, but of an incomprehensible heap of punishments; nor of one offence only, but of as many sorts of offences almost as can be conceived. Tell me now that a man has committed a felony, I am not a whit the nearer knowing what is his offence: all I can possibly learn from it is, what he is to suffer. He may have committed an offence against individuals, against a neighbourhood, or against the state. Under any natural principle of arrangement, upon any other than that which is governed by the mere accidental and mutable circumstance of punishment, it may be an offence of any class, and almost of every order of each class. The delinquents are all huddled together under one name, and pelted with an indiscriminating volley of incongruous, and many of them, unavailing punishments.
Felony, considered as a complex mode of punishment, stands at present divided into two kinds: the one styled Felony without benefit of Clergy, or, in a shorter way, Felony without Clergy, or as capital punishment is one ingredient in it, Capital Felony; the other, Felony within benefit of Clergy, Felony within Clergy, or Clergyable Felony. The first may be styled the greater—the latter, the lesser felony. There are other punishments to which these are more analogous in quality, as well as in magnitude, than the one of them is to the other. Such is the confusion introduced by a blind practice, and, as the consequence of that practice, an inapposite and ill-digested nomenclature.
How punishments so widely different came to be characterized in the first place by the same generic name, and thence by specific names, thus uncouth and inexpressive, shall be explained by and by, after we have analyzed and laid open the contents of the greater felony, of which the other is but an off-set detached from the main root.
History of the Benefit of Clergy.
The Christian religion, ere yet it had gained any settled footing in the state, had given birth to an order of men, who laid claim to a large and indefinite share in the disposal of that remote, but boundless mass of pains and pleasures, which it was one main business of that religion to announce. This claim, in proportion as it was acquiesced in, gave them power: for what is power over men, but the faculty of contributing in some way or other to their happiness or misery? This power, in proportion as they obtained it, it became their endeavour to convert (as it is in the nature of man to endeavour to convert all power) into a means of advancing their own private interest;—first, the interest of their own order, which was a private interest as opposed to the more public one of the community at large; and then of the individuals of that order. In this system of usurpation, a few perhaps had their eyes open; but many more probably acted under the sincere persuasion, that the advancement of their order above that of others, was beneficial to the community at large. This power, in its progress to those ends, would naturally seek the depression, and by degrees the overthrow, of the political power of any other that opposed it. These operations, carried on by an indefinite multitude of persons, but all tending to the same end, wore the appearance of being carried on in concert, as if a formal plan had been proposed and unanimously embraced by the whole clergy, to subdue the whole body of the laity: whereas, in fact, no such plan was ever universally concerted and avowed, as in truth there needed none. The means were obvious—the end was one and the same. There was no fear of clashing: each succeeding operator took up the work where his predecessor had left off, and carried it on just so far as interest prompted and opportunity allowed.
In pursuance of this universal plan, not concerted, but surer than if it had been the result of concert, were those exemptions laid claim to, which, by a long and whimsical concatenation of causes and effects, were the means of breaking down the punishment of felony into the two species of it that now subsist.
The persons of these favoured mortals, honoured as they pretended they were by a more immediate intercourse with the divinity, and employed as they were incessantly in managing the most important, and indeed only important concerns of mankind, were of course to be accounted sacred—a word of loose, and therefore the more convenient, signification, importing, at bottom, nothing more than that the subject to which it was attributed, was or was not to be accounted an object of distant awe and terror. They were therefore not to be judged by profane judgments, sentenced by profane mouths, or touched, in any manner that was unpleasant to them, by profane hands. The places wherein that mysterious intercourse was carried on, imbibed the essence of this mysterious quality. Stones, when put together in a certain form, became sacred too. Earth, within a certain distance round about those stones, became sacred too. Hence the privilege of sanctuary. In short, the whole of the material as well as intellectual globe became divided into sacred and profane; of which, so much as was sacred was either composed of themselves, or become subjected to their power. The rest of it lay destitute of these invaluable privileges, and, as the name imports, tainted with a note of infamy.
I pass rapidly over the progress of their claim of exemption from profane judicature: the reader will find it ably and elegantly delineated in Sir W. Blackstone’s Commentaries.
As to the causes, those which come under the denomination of felonies are the only ones with which at present we have to do. Contining our consideration, therefore, to these causes: as to persons, it was first claimed, one may suppose, for those of their own order—by degrees, for as many as they should think fit, for that particular purpose, to recognise as belonging to that order. By degrees, the patience of profane judges was put to such a stretch, that it could hold no longer; and they seem to have been provoked to a general disallowance of those exceptions, which had swelled till they had swallowed up in a manner the whole rule. This sudden and violent reformation, wearing the appearance of an abuse, the clergy had influence enough in the legislature to procure an act* to put a stop to it. By this act it was provided, that all manner of clerks, as well secular as religious, which shall be from henceforth convict before the secular justices, for any treasons or felonies touching other persons than the King himself, or his Royal Majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment† or delay, delivered to the Ordinaries‡ demanding them.
This statute, one should have thought, would have been sufficiently explicit, on the one hand, to secure the exemption to all persons in clerical orders; so, on the other hand, to exclude all persons not possessed of that qualification. To prove a person entitled to the exemption, the obvious and only conclusive evidence was the instrument of ordination. But the different ranks of persons who were all comprised under the common name of clerks, and as such partook more or less of the sacred character, were numerous; and some of these seem to have been admitted to their offices without any written instrument of ordination. Whether this omission was continued on purpose to let in a looser method of evidence, or whether it was accidental, so it is that the clergy had the address to get the production of that written evidence dispensed with. In the room of it, they had the address to prevail on the courts to admit of another criterion, which, ridiculous as it may seem at this time of day, was not then altogether so incompetent: “Orders,” they said, or might have said, “may be forged, or may be fabricated for the purpose; but as a proof that the man really is of our sacred order, you shall have a proof that can neither be forged nor fabricated; he shall read as we do.” The book was probably at first a Latin book—the Bible, or some other book made use of in church service. At that time, few who were not clergymen could read at all, and still fewer could read Latin. And the judges, if they happened to see through the cheat, might in some instances, perhaps, not be sorry to connive at it, in favour of a man possessed of so rare and valuable a qualification. But one book was easily substituted for another: a man might easily be tutored so as to get by rote a small part of a particular book; and as society advanced to maturity, learning became more and more diffused. We need not wonder, therefore, if by the time of Henry VIIth, it was found that as many laymen as divines were admitted to the ecclesiastical privilege—I should suppose a great many more, for there is something in the ecclesiastical function, that in the worst of times will render them less liable than others of the same rank and fortune to fall into open and palpable enormities. A statute,∥ therefore, was made to apply a remedy to this abuse; and what would one imagine was that remedy? To oblige persons, claiming the benefit of clergy, to produce their orders? No; but to provide, that persons claiming it, and not being in orders, should not be allowed it more than once; and that all persons who had once been allowed it, should have a mark set upon them, whereby they might be known. Real clergymen—clergymen who had orders to produce, were by an express provision of the statute, entitled to claim it toties quoties, as often as they should have need, which privilege they have still.
When a felon was admitted to his clergy, he was not absolutely set free, but delivered to the ordinary. The great point then was, if we may believe lay judges, who, it is to be confessed, are not altogether disinterested witnesses, to prove him innocent; for this tended to discredit the profane tribunal. This business of proving him innocent was called his purgation. If this were impracticable, he was put to penance; that is, subjected to such corporal punishment as the ordinary thought proper to inflict upon him, which we may imagine was not very severe. Thus it was that the clergy contrived to bind even the most stubborn spirits under the yoke of their dominion: the honest and credulous by their fears; the profligate, though incredulous, by their hopes.
Circumstances, however, are not wanting, which tend pretty strongly to make it probable, that when once a man got into the hands of the clergy, he almost always stood the purging, and proved innocent; and it is what the lay judges seem to have taken for granted would be the case of course. When, therefore, they made a point of making the offender suffer the train of punishments that stood annexed to acknowledged guilt, (death excepted, which was too much for them to attempt) they knew no other way of compassing it, than by insisting on his not being admitted to make purgation. These punishments, the imprisonment excepted, consisted altogether of forfeitures and civil disabilities; penalties with which the ecclesiastical superior had nothing to do, and which it lay altogether within the province of the temporal judge to enforce. One should have thought, then, it would have been a much less apparent stretch of authority in the latter, to give effect to the proceedings of his own judicature, than to lay a restraint on the ecclesiastical judge in the exercise of what was acknowledged to be his. But it were too much to expect anything like consistency in the proceedings of those rude ages. The whole contest between the temporal judge and the spiritual was an irregular scramble, the result of which was perpetually varying, according to the temper of individuals and the circumstances of the time.
By the time of Queen Elizabeth it came to be generally understood that purgation, which originally meant trial, was synonymous to acquittal.* This is so true, that when by a statute of that reign, purgation came to be abolished,† the legislature, instead of appointing a trial, appointed punishment. Persons claiming the benefit of clergy, instead of being delivered to the ordinary to make purgation, were now, after being burnt in the hand, to be forthwith delivered out of prison, unless the temporal judge should think proper to sentence them to imprisonment, which he was now for the first time empowered to do, for any time not exceeding a year.
It will here be asked, what was done with the pecuniary punishments, the forfeitures, the corruption of blood, and the disabilities? The answer is, nothing at all—they were never thought of. However, by one means or other, there is now an end of them. The legislator neither then nor since has ever opened his mouth upon the subject. But the judge, drawing an argument from that silence, has opened his, and construed them away.
This bold interpretation is a farther proof how entirely the ideas of purgation had become identified with that of acquittal. When a man was admitted to make purgation, he was acquitted: by that means he was discharged from these pecuniary penalties. Now, then, that the legislature has appointed that in the room of going free, the delinquent may now be punished by a slight punishment, and that not of course, but only in case the judges should think fit to order it of their own accord, we cannot, said the judges, suppose that it meant to subject him to a set of punishments so much severer than those it has named. Therefore, as to all but these, coming in place of an acquittal, we must look upon it as a pardon. Having, by this chain of reasoning, got hold of the word pardon, they went on applying it to other purposes in a very absurd manner; but, as we have already had occasion to observe, with a beneficial effect.
One would imagine, that being to suffer nothing, (what has been mentioned only excepted) first, because he was acquitted, next, because he was pardoned, there was an end of all pecuniary penalties, of the one species of forfeiture as well as the other. This, however, neither was nor is the case. A man did then, and does still, continue subject to the forfeiture of his personal estate. The reason of this is of true legal texture, and altogether characteristic of ancient jurisprudence. Forfeiture of real estate is not to take place till after judgment: forfeiture of personal estate, without the least shadow of a reason for the difference, is to take place before judgment; to wit, upon conviction. Now, ever since the days of Henry VI., it has not been the way to admit a man to plead his clergy till after conviction. Now, then, if a man comes and pleads his clergy, whatever goods he had, the king has got them. This being the case, having had your clergy, you are innocent, or, what comes to the same thing, you are forgiven. All this is very true; but as to your money, the king, you hear, has got it, and when the king has got hold of a man’s money, with title or without title, such is his royal nature, he cannot bear to part with it; for the king can do no man wrong, and the law is the quintessence of reason. To make all this clear, let it be observed there is a kind of electrical virtue in royal fingers, which attracts to it light substances, such as the moveables and reputed moveables of other men; there is, moreover, a certain glutinous or viscous quality, which detains them when they have got there.
Such are the grounds upon which the forfeiture of personal estate, in cases of clergyable felony, still continues to subsist.
This act gave the finishing stroke to the abusive jurisdiction of the clergy. The still more abusive exemption remained still, but so changed and depreciated by a lavish participation of it with the laity, that its pristine dignity and value was almost entirely obliterated. By the turn they had given to it, it was originally an instrument of unlimited dominion over others: it was now sunk into a bare protection, and that no longer an exclusive one, for themselves.
At last came the statute of Queen Anne,* which gives the benefit of clergy to all men whatsoever, whether they can read, or cannot. This, together with a statute of the preceding reign,† which had already given the same benefit to all women, gave quite a new import to the phrase. In words, it confirmed and extended the abusive privilege; in reality, it abolished it. It put the illiterate altogether upon a footing with the literate; providing, at the same time, that in the case of the offences to which it extended, both classes alike should suffer, not the punishment which the unprivileged, but that which the privileged, had been used to suffer before.
Since then, to allow the benefit of clergy to any offence, is to punish all persons who shall have committed that offence, in the same manner as lettered persons were punished before: it is to punish in a certain manner all persons for that offence. To take away this benefit, is to punish in a certain other manner, much more severe, all persons for that offence. The difference between the having it and the taking it away, is now the difference between a greater and a lesser degree of punishment: the difference formerly was the allowing, or not allowing, an oppressive and irrational exemption.
But these entangled and crooked operations have been attended with a variety of mischiefs, which are not by any means cured as yet, and of which scarce anything less than a total revision of the criminal law can work a total cure. Such a veil of darkness, such a cobweb work of sophistry, has been thrown over the face of penal jurisprudence, that its lineaments can scarcely be laid open to public view but with great difficulty, and with perpetual danger of mischief.
Of the mischief and confusion that has thus been produced, I will mention one instance, which will probably be thought enough.
In a statute of Henry VIII,‡ by a strange caprice of the legislature, the benefit of clergy was taken away in the lump from all offences whatever, which should happen to be committed on the high seas. He might as well have said, or in such a county, or by men whose hair should be of such a colour. In point of expediency, of a provision like this, one knows not what to make. Considered with reference to other parts of the legal system, it is reasonable, as doing something towards abolishing an unreasonable distinction. Considered in the same point of view, it is unreasonable, as making that abolition no more than a partial one, and grounding it, as far as it went, on a circumstance totally unconnected with the mischievousness of the offence. Considered by itself, it is again unreasonable, as tending to subject to the punishment of death for a great many offences, a great many persons for whom a less punishment might suffice.
In point of fact, however, what the legislature meant by it is clear enough: it meant that all men, without exception, privileged persons as well as others, should suffer death and so forth, who should be guilty of any kind of felonies upon the high seas, instead of their being made, some of them, to suffer death, others a punishment beyond comparison less severe. Would any one imagine what has been the effect of this provision? The effect of it has been, that these privileged persons, instead of suffering death, have suffered no punishment at all: yes, absolutely no punishment—not even that slight degree of punishment to which they before were subject. Now the case is, that at present, if one may be indulged in a solecism established by the legislature, all persons are privileged; so that now, all persons who may think proper to commit clergyable felonies on the high seas are absolutely dispunishable. This situation of things, in itself, is not altogether as it ought to be; but the means whereby it has been brought about are still worse. When a man is indicted of a clergyable offence within that jurisdiction, let his guilt be ever so plainly proved, the constant course is, for the judge to direct the jury to acquit him.* The man is proved to be guilty, in such a manner that no one can make a doubt about it. No matter; the judges direct the jury to say upon their oaths that he is not guilty.
In the ecclesiastical tribunal we have above been speaking of, things were so ordered, that, according to the author of the Commentaries, “felonious clerks” were not constantly, but “almost constantly” acquitted. I do beseech the reader to turn to that book, and observe in what energetic terms (partly his own, partly adopting what had been said on the same subject by Judge Hobart) the learned author has chosen to speak of this unjustifiable practice:† —“Vast complication of perjury and subornation of perjury—solemn farce—mock trial—good bishop—scene of wickedness—scandalous prostitution of oaths and forms of justice—vain and impious ceremony—most abandoned perjury.” Such are the terms he uses;—to the reader it is left to make an application of them.
Felony without Benefit of Clergy.
As to felony without benefit of clergy, I will, in the first place, state the ingredients of which this mode of punishment is compounded.
Of punishments included under the title of felony without benefit of clergy, we must distinguish, in the first place, such as are made to bear upon the proper object—punishments in personam propriam; and in the second place, such as are thrown upon the innocent—punishments in personam alienam.
Of punishments in personam propriam, it includes the following:—
1. A total forfeiture of goods and chattels, whether in possession or in action at the time of the forfeiture taking place. It is a sweeping punishment of the pecuniary kind. It takes place immediately upon conviction; that is, upon a man’s being found guilty—and does not wait for judgment; that is, for sentence being pronounced upon him.
2. Forfeiture of lands and tenements. This also is a sweeping punishment of the pecuniary kind. It does not take place till after judgment. This and the other forfeiture between them include the whole of a man’s property, whether in possession or in action at the time of the forfeiture taking place. If he does not lose it by the one, he loses it by the other.
3. The corporal punishment of imprisonment till such time as the conclusive punishment is executed upon him. The length of it depends partly on the judge, partly on the king.
4. The disability to bring any kind of suit. This operates as a punishment in such cases only in which a long interval, as sometimes happens, intervenes between the sentence and the actual infliction of the ultimate punishment.
5. The corporal punishment of death, viz. simple death by hanging. As this punishment in general puts a speedy period to all the rest, the dwelling upon the effect of any other is what may, at first sight, appear useless: but this is not absolutely the case; for the execution of this punishment may, at the pleasure of the king, be suspended for any length of time, and in some instances has actually been suspended for many years.‡
Thus much for punishment in propriam personam. Punishments in alienam personam included under it, are the following; some of them are instances of transitive, others of merely random punishment:—
His heirs-general, that is, that person or persons of his kindred who stand next to him, and so to one another in the order of succession to real property unentailed, forfeit all property of that denomination which he had enjoyed, and which, without an express appointment of his to the contrary, they would have been entitled to from him. This results as a consequence of the doctrine of corruption of blood: this is an instant forfeiture: it is a sweeping punishment of the pecuniary kind upon the heir. It may amount to a forfeiture, total or partial, of all the immoveable property the heir would be worth, or to no forfeiture at all. If, previously to the commission of the offence, the offender had settled upon his heir-apparent the whole or any part of what property he had of the kind in question, this the heir will not be deprived of.
2. His heir, as before, forfeits his hope of succession to all such real property as he must make title to through the delinquent, as standing before him in the order of consanguinity to the person last seized. This is a remote contingent forfeiture—another pecuniary punishment of the sweeping kind. In this the uncertainty is still greater than in the former case.
3. Any creditors of his, who have had real security for their debts, forfeit such security, in case of its having been granted to them subsequently to the time of the offence committed. This, where it takes place, is a fixed punishment of the pecuniary kind. It is uncertain as to the person; but if there be a person on whom it falls, it is certain as to the event.
4. Any persons who may have purchased any part of his real property, forfeit such property, in case of this purchase having been made by them subsequently to the time of the offence. This, again, is a fixed punishment of the pecuniary kind. It is uncertain whether it shall fall upon any person, because it is uncertain whether there be a person so circumstanced; but if there be, it is certain as to the event of its falling.
5. Any persons who hold lands or tenements of him under a rent, are obliged to pay over again, to the person on whom the forfeiture devolves, whatever they may have paid to the delinquent subsequently to the time of the offence.
These four last denominations of persons are made to suffer in virtue of the doctrine of back-relation. According to legal notions, it is the delinquent that suffers, by the forfeiture being made to relate back to the time of the offence: as if it were a new suffering to a man to be made to have parted with what he had already parted with of his own accord. In plain English, it is the people themselves—the tenants, purchasers, and creditors, that suffer: it is they who forfeit, and not he.
Again, by virtue of the forfeiture of what is called his personal property, the following denominations of persons are made to suffer:—
1. His wife: by being deprived of whatever she would have been entitled to under his will, or under the law of distributions.
2. His children, or others next of kin: by losing what they might, in the same manner, have become entitled to.
3. His creditors: by losing all claim upon his personal estate. By this forfeiture, added to what takes place in the case of real estate, all his creditors whatever are defrauded; such only excepted as may have been fortunate enough to have obtained a real security previous to the commission of the offence.
We now come to Felony within Clergy. The mass of punishments included within this title are much less various, as well as less severe.
Of punishments in propriam personam, it includes only the first and third of those which are included under the other species of felony.
In the room of the fifth and last punishment, the punishment of death, there is one that takes place, or rather is said to take place, of course: I mean, marking in the hand.* Others there are, which, besides the former, take place optionally, at the discretion of the judge; conjunctively, with respect to the three former—disjunctively, with respect to one another.
This punishment of marking is now become a farce. It is supposed to be inflicted in open court, immediately after the convict, in order to exempt himself from the punishment of the other felony, has been made—if a woman, to plead the statute—if a man, to tell the solemn lie that he is a clerk. The mark to be inflicted is, according to the statute, to be the letter T, unless the offence be murder, in which case it is to be an M; murder, at that time, not as yet having been taken out of the benefit of clergy: as it has, however, since, the mark ought now to be that of a T in all cases. The part to be marked is the brawn of the left thumb; so that if a man happens to have lost his left thumb, he cannot be marked at all; or, if afterwards he chooses to cut it off, he may prevent its answering the purpose it was meant to answer, that of distinguishing him from other men.
The instrument originally employed was a heated iron, with a stamp upon it of the shape of the letter to be marked. To the judges of that time, this was the only expedient that occurred for marking upon the human skin such a mark as should be indelible. At present, the practice is to apply the iron, but it is always cold: this is what is called burning with a cold iron, that is, burning with an iron that does not burn; in consequence, no mark at all is made. The judge presides at this solemn farce: by no one is it complained of; by many it is approved; it is mildness, humanity: it is true that the law is eluded, and turned into ridicule; but the judge spares himself the pain of hearing the cries of a man to whose flesh a red-hot iron is applied. It may be asked, why do not the judges propose that the law should be made conformable to the practice? I cannot tell.
The judge that first disregarded the statute was guilty of the assumption of illegal power: he who should now have the courage to obey it, might now affix the prescribed mark without putting the delinquent to any considerable pain.†
The other punishment, which in all cases of felony within clergy, may, at the discretion of the judge, be superadded or not to those which we have seen, are those of imprisonment and transportation.
For the second offence of a clergyable felony, capital felony is the punishment.*
Clerks in orders are alone exempted:† peers are not: women are expressly subjected to it. It is certainly a distinction highly honourable to the clergy, that they may go on pilfering, while other people are hanged for it.
Why a man, having been punished for one act of delinquency, should be punished more than ordinarily for a second act of the same species of delinquency, or even for any other offence of the same species of delinquency, there is at least an obvious, if not a conclusive reason. But why, when a man has been punished by a certain mode of punishment, and then commits an offence as different as any offence can be from the former, the punishment for this second offence is, because it happens to be the same with that for the first, to be changed into a punishment altogether different, and beyond comparison more penal, is what it will not, I believe, be easy to say. Is it because the first mode of punishment having been tried upon a man, the next above it, in point of severity, is that of capital felony? That is not the case; for præmunire is greatly more penal than clergyable felony. I mention this as being impossible to justify, not as being difficult to account for, since nothing better could consistently be expected from the discernment of those early times.
There is one thing which a clergyable felon does not forfeit, and which every other delinquent would forfeit for the most venial peccadillo, and that is reputation: I mean that special share of negative reputation which consists in a man’s not being looked upon as having been guilty of such an offence. This share of reputation the law, in the single instance of clergyable felony, protects a delinquent, in so far forth as it is in the power of law, by brute violence, to counteract the force of the most rational and salutary propensities. If a man has stolen twelve-pence, and been convicted of it, call him a thief and welcome. But if he had stolen but eleven-pence halfpenny, and been convicted of it, and punished as a felon, call him a thief, and the law will punish you. This has been solemnly adjudged.
I say convicted and punished as a felon; for if he has not been convicted of it, in virtue of the general rule in case of verbal defamation, you may call him so if you can prove it; but when the law, by a solemn and exemplary act, has put the matter out of doubt, then you must not mention it. Would any one suspect the reason? It is because the statute which allows the benefit of clergy operates as a pardon. It has the virtue to make that not to have been done which has been done; and it was accordingly observed, that a man could no more call another thief who had been punished for it in this way, (thief say they in the present time) than say he hath a shameful disease when he had had it, and has been cured of it.‡
It is there also said, with somewhat more colour of reason, though in despite of the last-mentioned rule, “that there is no necessity or use of slanderous words to be allowed to ignorants,” and that, though the arresting of a pardoned felon, by one who knows not of the pardon, may be justifiable, because this is in “advancement of justice; yet so it is not to call him thief, because that is neither necessary, nor advanceth nor tends to justice.” He who said this knew not, or did not choose to know, how mighty is the force, and how salutary the influence, of the moral sanction; how much it contributes to support, and in what a number of important instances it serves to controul the caprices, and supply the defects, of the political. It was perhaps Sir Edward Coke—a man who, from principle, was a determined enemy, though, from ill humour, upon occasion an inconsistent and unsteady friend to political liberty—who in his favourite case, de libellis famosis, has destroyed, as far as was in his power to destroy, the safeguard of all other liberties, that of the press;—proscribing all criticism of public acts; silencing all history; and vying in the extent of his anathemas with the extravagance of the most jealous of the Roman Emperors.
[* ]Blackst. Com. 95.
[† ]We say, he fell, as well as he swerved, from the line of duty: he fell from his allegiance. The original sin of man is called the fall of man. Lord Clarendon says somewhere, he fell from his duty and all his former friends. Let him who standeth, says the Gospel, take heed lest he fall. In ecclesiastical jurisprudence, a heretic relapsed, is one who, having once been convicted of heresy, falls into the same offence a second time.
[‡ ]An is nothing but the common termination of the infinitive mood.
[* ]25 Edw. III. Stat. 3, c. 4.
[† ]It should be hindrance: the French original is empeschement.
[‡ ]Meaning the Bishop, or other ecclesiastical superior.
[∥ ]4 Hen. VII. c. 13.
[* ]It is amusing enough to observe the continual struggle between the spiritual and the carnal judge, as described in Staundford, title Clergy. It seems to have been a continual game of leap-frog, in which sometimes spirit, sometimes flesh, was uppermost.a
[† ]18 Eliz. c. 7.
[* ]5 Ann. c. 6.
[† ]3 & 4 W. & M. c. 9.
[‡ ]28 Hen. VIII. c. 15.
[* ]4 Comm. c. 28. Foster, 288. Moor, 756.
[‡ ]Sir Walter Raleigh was kept for many years with the halter about his neck: he had the command given him of an expedition; went to America, where he committed piracies on the Spaniards; came back again; and was hanged at last for the original offence.
[* ]4 Hen. VII. c. 13.
[†]The statute directs that the convict shall be “marked:” the mode of marking is left altogether to the judge. The author of the Commentaries (4 Comm. p. 367, ed. 1809) “burnt with a hot iron.” It is plain by this that he had never read the statute: for the statute, which is a very short one, says not a syllable about burning, nor about a hot iron.
[* ]4 Hen. VII. c. 13.
[† ]By 4 Hen. VII. c. 13; repealed in effect, quoad hoc, by 28 Hen. VII. c. 1, and 32 Hen. VIII. c. 3: and revived in effect quoad hoc by 1 Ed. VI. c. 12. p. 10.
[‡ ]Hobart, 81.
[* ]It is amusing enough to observe the continual struggle between the spiritual and the carnal judge, as described in Staundford, title Clergy. It seems to have been a continual game of leap-frog, in which sometimes spirit, sometimes flesh, was uppermost.a
[a ]Tale of a Tub.
[b ]Staundford, Clergy, c. 48. Bracton.